Virginia Man, Who Narrowly Escaped the Death Penalty, Exonerated by DNA Evidence To Be Released After Serving 33 Years

By Innocence Staff

(Richmond VA – April 8, 2016) After the Virginia Supreme Court granted a writ of actual innocence to Keith Allen Harward on Thursday, Harward is expected to walk out of a Virginia prison a free man today after wrongly serving more than 33 years of a life sentence for a rape and murder he did not commit. Harward, who narrowly escaped the death penalty, was convicted primarily on the testimony of two forensic dentists who said that Harward’s teeth matched marks left on the rape victim. During the course of his prosecution 6 forensic dentists falsely claimed that Harward’s teeth matched a bite mark on one of the victims. New DNA evidence definitively proved Harward’s innocence and pointed to Jerry Crotty as the real assailant.

“Mr. Harward is at least the 25thperson to have been wrongly convicted or indicted based on discredited bite mark evidence,” said Chris Fabricant, Director of Strategic Litigation for the Innocence Project, which is affiliated with Cardozo School of Law. “We have no idea how many other people may have been wrongly convicted based on this evidence, but any conviction resting on this grossly unreliable technique is inherently flawed. Every state in the nation should be conducting reviews to see if there are others like Mr. Harward sitting in prison for crimes they didn’t commit. Moreover, that this technique is still used in our justice system, including current capital prosecutions, presents a public safety threat.”

Peter Neufeld, Co-Director of the Innocence Project, added, “Unless and until our leaders in Washington take action to discourage the use of unreliable and unvalidated techniques such as bite marks, and instead create rigorous science-based standards for all forensics, we are doomed as a nation to endure hundreds more Harwards.”

Harward was convicted of a 1982 rape and murder in Newport News, Virginia. The assailant broke into a home of a couple, killing a man and raping his wife. During the course of the attack, the assailant bit the wife’s legs repeatedly. The wife, who was never able to identify Mr. Harward as the man who attacked her, told police that he was wearing a sailor’s uniform. A dentist reviewed the dental records of Marines stationed to the USS Carl Vinson at the time and initially excluded Harward. He became a suspect six months later after his then-girlfriend reported to police that he had bitten her in a dispute.

At trial, the prosecution rested mainly on the testimony of two forensic dentists, Lowell Levine and Alvin Kagey, who claimed that Harward’s teeth matched photos of the bite mark left on the female victim. Levine is known as one of the foremost experts in forensic bite mark analysis and has served as President of the American Academy of Forensic Sciences, the Forensic Sciences Foundation and the American Board of Forensic Odontology. The other evidence against Harward at trial consisted mainly of the testimony of a security guard who claimed to have seen Harward enter the shipyard with a bloody uniform in the early morning after the attack. The Innocence Project later learned that the security guard’s identification occurred only after the witness was placed under hypnosis, a practice that is now known to be highly unreliable.

Despite testifying in his own defense and presenting evidence he didn’t match the victim’s description, Harward was convicted of capital murder but was spared the death penalty by the jury. His conviction was reversed in 1985 because of an issue regarding how the capital murder statute should be interpreted. He was retried and convicted again in 1986 but was no longer eligible for the death penalty under Virginia law. At the second trial, the prosecution argued that Harward could not be excluded as a source of blood evidence recovered on crime scene evidence, but the Innocence Project subsequently learned that the blood evidence did in fact prove that Harward’s blood type did not match blood recovered on the evidence.

The Innocence Project performed DNA testing on the rape kit and numerous other pieces of crime scene evidence. The testing excluded Harward and identified Jerry Crotty as the person responsible for committing the crime. Crotty, who is now deceased, had a violent criminal record and was a sailor on the USS Carl Vinson at the time of the crime.

“We are grateful to Attorney General Mark Herring and Newport News District Attorney Howard Gwynn for cooperating throughout this case and supporting Mr. Harward’s writ of actual innocence,” said Olga Akselrod, Senior Staff Attorney at the Innocence Project. “Without their support, Mr. Harward’s struggle for justice would have been much harder.”

Throughout his prosecution, six bite marks analysts agreed that marks found on the victim matched to Harward. In addition to the two who testified at trial, the two defense lawyers who represented Harward in his trials asked forensic dentists to review the evidence, and both dentists agreed that the marks matched to Harward.

Harward is at least the 25th person to have been wrongfully convicted or indicted based at least in part on bite mark evidence. Despite the fact that for decades courts have permitted forensic dentists to testify in criminal trials, there is a complete lack of scientific support for claims that a suspect can be identified from an injury on a victim’s skin. This was noted in the National Academy of Science’s groundbreaking 2009 report, Strengthening Forensic Science in the United States: A Path Forward, which found, “no evidence of an existing scientific basis for identifying an individual [through bite mark comparison] to the exclusion of all others.”

After hearing from leading experts on the reliability of bite mark evidence, in February the Texas Forensic Science Commission recommend that the state issue a moratorium on the use of bite mark analysis in prosecutions throughout the state. The American Board of Forensic Odontologist has even recently changed its guidelines to acknowledge that the technique cannot be used to identify a person as the biter.

“There is not a shred of scientific evidence supporting this erroneous forensic practice, yet it is still permissible in courtrooms across the nation,” said Dana Delger, a staff attorney with the Innocence Project’s Strategic Litigation Unit. “Hopefully Mr. Harward’s case will once and for all persuade judges and law enforcement that this unreliable evidence has no use in criminal prosecutions.”

Donald Salzman, a partner at Skadden, Arps, Slate, Meagher & Flom LLP, who worked on this case in collaboration with the Midatlantic Innocence Project, added, “This has been a extremely long fight for freedom for Mr. Harward. We are pleased that he is finally going to be reunited with his family and hope law enforcement throughout the nation learns for the painful lessons learned.”

My brother was executed in Virginia’s electric chair as Douglas Wilder was the governor.

The family protested the execution. The BIGGEST issue was the prosecuting attorney and the police detectives who were over zealous and didn’t care about the truth. The prosecutors and police don’t care about anyone and what damage they cause because they are untouchable by the law. They can lie and convince the person in the room to admit to the proposal or face even a harsher sentence.

Nothing in our broken judicial system will change until the cops, detectives and prosecutors are held accountable for making the hasty mistakes they currently do.

I have information from my brothers execution along with pictures of him after and truly what the electric chair does to a person.

I’ve actually been looking for a way to compile some realistic depictions of execution methods, now that states are reverting back to firing squads and, quite likely, the electric chair. (I’ve already been rebuffed by a hostile forensics expert after asking if I could cite his blog!) It’s a cliche, but it’s true: people see death in the movies and think it’s always instantaneous, and I think it makes it easier for people to leave the death penalty out of the national conversation.

I am so happy for you!! My brother and a friend of his were also convicted of a horrible crime that they had nothing to do with, all because of bite mark forensics! I know what a “smoke and mirrors” display the dentists make at trial, I watched it with my own eyes! They are very convincing! My brother received a 60-90 year sentence and his friend received 50-75 years. Fortunately they didn’t have to serve those entire sentences, my brother served 12 years, and his friend 13 years before we were able to get them new trials. They were both found not guilty at their re-trials. I feel for you and your family because I went through the exact same thing myself. I pray that you will be able to put this behind you, and that you have nothing but happiness every day for the rest of your life!! God bless you and your family :)…and God bless the Innocence Project for their undying loyalty to those people that society doesn’t seem to care about.

Thank God for the work of the innocence Project! My heart breaks for the people that have been wrongly convicted (and their families) and served so many years in prison; falsely accused while courts continue to use unreliable evidentiary procedures.

One way to deal with this type of injustice is to, through guerilla warfare, using asymmetric tactics, encounter the judges, prosecutors, legislators, law enforcement personnel, prison officials, politicians, appointed personnel, etc., etc., etc., etc., etc. Once encountered, open a large can of Medieval Private Justice, and administer it with extreme prejudice. Do it also with their families and their property.

I am so sorry you lost your brother, Tina. It chills a caring person to contemplate the dozens of innocents executed as a result of wrongful convictions. Between totally incompetent representation by often unqualified attorneys and overzealous District Attorneys seeking promotion to judges and willing to cheat to win, it is simply appalling how our ‘justice’ system works.Thank God for the folks at the Innocence Project and similar organizations. Harland

Thank goodness for the Innocence Project and the attorney’s that work with them. Although I haven’t experienced this personally my heart cries for those who have, and the current state of affairs in our country makes me nervous about these government bullies.

Since I was in High School taking law classes I feared that there was a big problem with innocent people wrongly jailed. The law professor said only that it was rare and to stay out of court. Well I never thought that it would happen to me as a state police officer but because of the system allowing ignorant people to get away with sending innocent people to jail just because they made a mistake in their investigation and were too lazy to confirm stories I too had a taste of abuse. We suffer while the idiot that made the false charge goes without even a slap on the wrist. Now Hillary Clinton is asking the same man that was in control at Virginia’s Capitol when another man was forced to spend another 5 of 10 years in prison after a man confessed for the crime. It wasn’t until a new governor came in that the man was granted his freedom. Why does the state have such a high record of convictions involving innocent people, it’s because there are so many selfish, corrupt and irresponsibly ignorant people in those high places.

Thank you innocent project .So glad this man was found innocent
But so many are not. You cannot dig up a dead innocent man. The death penalty.needs to be ended. We are not a barbaric country like China,Irac or Iran they are the ones that execute people still.